Social Security Legislative Bulletin

On August 3, 2007, the Senate passed S. 849 by unanimous consent. On August 6th, the Senate informed the House that it had passed the bill; the House will receive the bill when they reconvene in September.

S. 849 is similar to H.R. 1309, “The Freedom of Information Act Amendments of 2007,” (Legislative Bulletin 110-1) which passed the House in March by a vote of 308-117. H.R. 1309 is pending in the Senate Committee on Homeland Security and Governmental Affairs.

Among other things, the Senate-passed bill would:

• Require that the 20-day statutory time limit for responding to requestors with regard to a determination of whether the agency will comply with such request to begin immediately upon receipt by the appropriate agency component of the Freedom of Information Act (FOIA) request, but no later than ten days after the request is first received by any component of the agency that is designated in the agency's FOIA regulations to receive FOIA requests. Would also permit an agency to make one request for information or to clarify issues regarding fee assessment to the requester. While the agency awaits a response, the 20-day clock would stop. These provisions would be effective one year after the date of enactment.

• An agency's failure to comply with this 20-day statutory time limit would preclude the agency from assessing search fees provided that no unusual or exceptional circumstances exist. Would also require each agency to make available its FOIA Public Liaison to assist in the resolution of any disputes. These provisions would be effective one year after the date of enactment and would apply to FOIA requests filed on or after the effective date.

• Require each Federal agency (including SSA) to assign a tracking number to each request that will take longer than ten days to process and to notify the requester of such tracking number for each FOIA request. In addition, would require Federal agencies (including SSA) to establish a telephone line or Internet service that provides information about the status of requests, including the date on which the agency received the request and an estimated date on which the agency will complete action on the request. These provisions would take effect one year after the date of enactment and would apply only to FOIA requests filed on or after that effective date.

• Prohibit Congress from creating new statutory exemptions under FOIA unless it does so explicitly by requiring new statutory exemptions to specifically cite FOIA.

• For purposes of the annual FOIA compliance reports, require Federal agencies (including SSA) to provide additional information about timeframes for responding to requests with a determination, including:

• The number of requests that the agency has responded to within the required 20 days;

• Information about the timeframes for providing granted information to requesters;

• Data regarding agency responsiveness to administrative appeals; data on the 10 active requests and administrative appeals with the earliest filing dates pending at the agency; and

• Recommending to the head of the agency changes needed to improve implementation of FOIA;

• Providing to the Attorney General reports on the agency's performance in implementing FOIA;

• Ensuring that necessary information about FOIA exemptions is included in the agency's FOIA handbook and FOIA report; and

• Designating one or more FOIA Public Liaisons.

These provisions would be effective upon enactment.

• Require Federal agencies to use the following definitions when determining whether a FOIA requestor is eligible, as a member of the news media, for a waiver of fees for document search and review:

• Define “a representative of the news media” as any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

• Define “news” as information that is about current events or that would be of current interest to the public.

• Require evolving alternative media, such as electronic dissemination of newspapers through telecommunications services, to be considered news-media entities.

• Regard freelance journalists as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity.

• Allow Government agencies to consider the past publication record of the freelance journalist in determining if he/she works for a news-media entity.

• Expand the definition of “substantially prevail” for the purpose of the recovery of attorney fees and other litigation costs from the Claims and Judgment Fund of the U.S. Treasury. “Substantially prevail” would include, in addition to situations in which the claimant has obtained relief from the agency through voluntary or enforceable decisions or orders, those situations in which the claimant has obtained relief from the agency through voluntary or unilateral changes in position by the agency.

• Strengthen provisions in current law that authorize disciplinary action against government officials who deny records to FOIA requesters, by directing the Attorney General to:

• Notify the Special Counsel of civil actions taken for certain rejections of requests for agency records;

• Annually submit reports to Congress on the number of these actions taken; and

• Require the Special Counsel to submit annual reports to Congress on the actions taken by the Special Counsel regarding these civil actions.

These provisions would be effective upon enactment.

• Extend the definition of “record,” to include Federal contractors who maintain, as agreed to by the contracting agency, any information that would be an agency record subject to the requirements of FOIA, in any format (including electronic format).

• Establish the Office of Government Information Services within the National Archives and Records Administration. The Office would:

• Review FOIA policies and procedures of administrative agencies;

• Review agencies on FOIA procedures and compliance;

• Recommend policy changes to Congress and the President; and

• Offer mediation services between requestors and agencies as an alternative to litigation and may issue advisory opinions if mediation does not resolve the dispute.

• Require the Government Accountability Office to conduct audits of agencies on the implementation of FOIA and report the results.

• Require the Office of Personnel Management to report to Congress regarding personnel policies related to FOIA no later than one year after the date of enactment.

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